Court takes up abortion health care lawsuit

Alan Lyle Howe stands in the Brown and Roberts Hardware store building, where he has worked for the past 4 years, overlooking Main Street in Brattleboro in February.(Photo: ZACH STEPHENS/for the FREE PRESS)

A man opposed to having a portion of his health care premium allocated toward elective abortions appeared in federal court Thursday for the first hearing in his case.

Alan Lyle Howe of Guilford is suing the Department of Vermont Health Access, commissioner Steven Constantino and a host of federal officials. Howe's lawyer, Casey Mattox, has said that Howe is deeply religious and believes the use of his money for abortion is a violation of his religious freedom.

Howe, 63, is seeking a court order while the lawsuit is pending that prevents him from being penalized for not enrolling in health care.

Mattox is a lawyer for Alliance Defending Freedom, which employs Christian attorneys and like-minded organizations.

Howe, Mattox and lawyers for the state and federal governments appeared Thursday in U.S. District Court in Burlington to discuss Howe's request to be protected from potential harm.

Mattox said Howe did not re-enroll in health care through Vermont Health Connect this year after discovering that all programs on the exchange allocate part of a person's premium toward elective abortions. Howe believes he was forced to choose between his health care and his religious beliefs, Mattox said.

Howe has been without health coverage since the beginning of the year.

Mattox said power to prevent further harm to Howe lies with the both the federal and state governments. He suggested the court order Howe be either refunded for any payment that goes toward abortion or exempted from that payment.

U.S. Justice Department lawyer Caroline Wolverton said the government would be willing to lift the penalties associated with failing to separate the abortion payment from premium if an insurance carrier wished to enroll Howe. However, she said the government could not compel the insurance carriers to make the exception or to stop separating the payments.

Wolverton said the insurers might prefer to continue to separate the abortion payment from the premium for "accounting purposes."

As part of a final settlement, Howe seeks requirements compelling issuers and exchange employees to provide information about abortion coverage and money allocated to pay for abortions; attorney fees and expert costs; and other relief.

"It makes no sense that insurers that had the option of simply just charging people for their insurance plan and not charging them the $1 per month to pay for other people's abortions would refuse to accommodate someone that way," Mattox said after the hearing. "That seems to be the real sticking point at this point."

Assistant Attorney General Bridget Asay said the enforcement of the Affordable Care Act happens at the federal level, so the state would have little to no role in any protection during the lawsuit proceedings.

Chief U.S. District Judge Christina Reiss told lawyers she would make a final decision on Howe's request in 30 days. The lawyers will continue talks for potential settlement in the meantime.

Vermont, New Jersey and Hawaii are the only states that fail to offer a health insurance plan that does not fund elective abortions, Mattox said.

The Affordable Care Act requires the director of the Office of Personnel Management to enter into contracts for placing at least two "multistate" health plans on each state's exchange by 2017. At least one of these plans must not include payment for elective abortion, Mattox said.

Contact Elizabeth Murray at 651-4835 or emurray@freepressmedia.com. Follow her on Twitter at www.twitter.com/LizMurraySMC.